Lampshire & Lampshire

Case [2023] FedCFamC1F 556

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lampshire & Lampshire [2023] FedCFamC1F 556

File number: MLC 10325 of 2019
Judgment of: HARTNETT J
Date of judgment: 7 July 2023
Catchwords:

FAMILY LAW – PARENTING – Parental responsibility – Where the parties agreed to equal shared parental responsibility – Where the husband seeks change of residence and spend time arrangements – Family violence allegations – Where one child is disabled and has special needs – Where the two eldest children are now adults and do not have a close relationship with the husband – Where the two younger children are the subjects of the proceeding – Where the two younger children live predominantly with the wife – Where the youngest child is enmeshed with the wife and elder siblings – Where the husband has re‑partnered – Where the wife has a diagnosed mental health disorder which is rejected by her – Where there is risk to the children in the wife’s care that can be ameliorated – Where the parties are unable to communicate effectively as to the husband’s involvement with the children – Where the wife has failed to comply with Court orders – Children live in a six/eight fortnightly arrangement in favour of the husband on a fortnightly basis during term periods and one half of all school holidays – Parties to appoint a child psychologist for the youngest child – Parties to encourage continuance of sporting activities for the youngest child.

FAMILY LAW – PROPERTY – Division of property interests – Where both parties have contributed to the asset pool – Where the asset pool is agreed between the parties – Where the husband worked throughout the relationship – Where the wife has been occupied in home duties and the primary care of the children – Where the husband is employed – where the wife is unemployed and will likely not obtain employment in the future – Where the contributions are equal – Where the s 75(2) matters favour the wife – Where a division of 40% to the husband and 60% to the wife should be made.

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAA, 75, 79, 149

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Division 11.1.13, rr 11.15, 13.04

Cases cited:

Bevan & Bevan (2013) FLC 93-545

Best & Best (1993) FLC 92-418

Blinko & Blinko [2015] FamCAFC 146

Dickons & Dickons (2012) 50 Fam LR 244

Goode & Goode (2006) FLC 93-286

Clauson & Clauson (1995) FLC 92-595

M & M (1988) 166 CLR 69

Mallet v Mallet (1984) 156 CLR 605

Mulvany & Lane (2009) FLC 93-404

Pandelis (2018) Fam CAFC 66

R & C [1993] FamCA 62

Stanford & Stanford (2012) 247 CLR 108
Division: Division 1 First Instance
Number of paragraphs: 273
Date of hearing: 20 - 24 February 2023
Date of last submissions: 28 March 2023
Place: Melbourne
Counsel for the Applicant: Ms Tulloch

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Details
AGLC
Lampshire & Lampshire [2023] FedCFamC1F 556
Case
[2023] FedCFamC1F 556
Decision Date

CaseChat Overview and Summary

The case of Lampshire & Lampshire involves the husband and wife, both of whom have presented evidence from expert reports in relation to the welfare of their children. The dispute centers on the appropriate living arrangements for the children, considering the wife's health issues and allegations of family violence. The court was tasked with determining whether the children should remain with the wife or if a change in primary care to the husband would be in their best interests. The decision also included considerations regarding property settlement between the parties.

The legal issues the court had to decide included the assessment of the wife's ability to provide a safe and stable environment for the children, given her health and mental health issues, and the impact of these issues on the children's wellbeing. Additionally, the court had to evaluate the husband's allegations of family violence and their impact on the children. The court was also required to determine an appropriate property settlement, considering the duration of the marriage and the contributions of each party.

The court found that the risks to the children posed by the wife's mental health issues and overuse of prescription medication warranted a change in primary care to the husband. The court accepted that the husband’s proposal would enable the children to maintain relationships with both parents while protecting them from harm. The court also concluded that the children should spend more time with the wife than initially proposed, to accommodate the wife's role as the primary carer. The court's decision aimed to balance the children's best interests with the need to minimize further litigation. In terms of property, the court considered the length of the relationship and made an order that it deemed just and equitable.

The court ordered that the children would reside primarily with the husband but spend six nights a fortnight with the wife during school term periods. The court also made specific orders regarding the property settlement between the parties, considering the factors outlined in the Family Law Act.

Orders

Orders of the court

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Background

Background to the litigation

Both parties and the Independent Children’s Lawyer relied upon the Family Report of Dr D dated 18 March 2022; Addendum Report of Dr D dated 13 October 2022; and Assessment Report by Dr B dated 17 January 2020.BACKGROUNDParenting The husband was born in 1966, and was aged 56 years at trial. He is in good health and is employed as a senior manager at LL Company. He resides with his partner, Ms KK, and her two adult children at a rental property in Suburb MM. The wife was born in 1972, and was aged 50 years at trial. The wife is in poor health, suffering from an injury. The wife also has some mental health issues as discussed hereafter. She is currently unable to undertake employment due to her injury and is engaged in home duties. She has relocated to a rental property in Town NN, where she resides with the children. The parties cohabitated in 1997 and were married in 2000. In 2002, Ms AA was born. In 2004, Ms BB was born. In or around 2005, the wife sustained an injury. The injuries consist of nerve damage and pain in the affected area, this affects her ability to walk. The wife has since had multiple surgeries to stabilise the pain. In 2007, X was born. In 2010, Y was born. In late 2017, the wife had an implant to assist with pain management for her injury. The benefits were to take effect after 18 months. In mid-2019, as alleged by the wife, the husband engaged in acts of family violence by tripping X who then fell and hit his head, elbow and arm on the floorboards. The wife alleged the husband thereafter yelled at X, and blamed the wife for failing to “sort things out”.[9][9] Wife’s trial affidavit filed 17 February 2023, paragraph 70. In mid-2019, as alleged by he wife, the husband engaged in further acts of family violence by shoving Ms BB’s head into the dishwasher cavity, and yelling at Ms BB. Separation of the parties followed. There is a dispute between the parties as to when separation occurred. The husband stated that the parties separated in May 2019 and they were thereafter residing separately under the same roof. The wife stated separation occurred in July 2019, in the context of her obtaining an interim Intervention Order (“IVO”) which named the wife and children as protected persons as against the husband due to alleged family violence. Such violence was denied by the husband. It was the husband’s evidence the wife applied for an IVO against him, on an ex-parte basis, out of spite and in response to his desire to separate from her on a permanent basis. Post-separation, the children have resided in the wife’s care. The husband did not spend time with the children for approximately three months post-separation due to the IVO conditions and the wife’s refusal to agree to the children spending time with the husband. In this time the husband became concerned about the children’s health, wellbeing and risk of neglect in the wife’s care. This led to the initiation by him of the family law proceeding.[10][10] Family Report of Dr D dated 18 March 2022, paragraph 12.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is clearly preferable, in my view, to make orders that would be least likely to lead to further litigation in relation to the children.Conclusion The wife’s rental property has six bedrooms and a study and is situated on a large property. The children each have their own bedrooms. The property is in an area accessible to the children’s respective schools and where the animals are agisted.[95] The wife had made arrangements for the animals to be held on a local property and to rehome their dog. The wife deposed her lease is for six months with an option to extend.[96] At trial, the home was in a very tidy state. The wife had realised, to a very small extent, her then predicament. I do not take this to be a resolution of the wife’s difficulties however. But it might be the commencement of some progression toward establishing and maintaining a hygienic household. And it may not.[95] Wife’s trial affidavit filed 17 October 2022, paragraphs 66-68.[96] Wife’s trial affidavit filed 14 September 2022, paragraph 32. It is submitted on behalf of the husband and in effect, the ICL, that Dr D’s evidence supports a change of residence as there is no reasonable prospect that the wife will accept treatment or support services, and the risks to the children if they are to remain living with the wife who has a mental health disorder are as suggested in general terms by Dr D in her Addendum Report. I accept that submission. Those risks are also very clearly set out in Dr C’s evidence. The husband and ICL’s proposal for a change in primary care of the children from the wife to the husband do enable the children to have a meaningful relationship with both of their parents, whilst protecting the children from harm by lessening their exposure to the wife’s mental health and medical issues. These issues arise from the wife’s overuse of prescription medication, her depression and mental health disorder coupled with her lack of insight. By the husband having the care of the children on more school days than the wife, the issue of the children not attending school or being late for school will be lessened. In my view, the children should spend however a greater time with the wife than that proposed by the husband and the ICL, namely six nights a fortnight during school term periods. The wife has been their primary carer and Y in particular will find a movement of such degree already difficult to accommodate. A situation, where the husband becomes, marginally, the primary care giver is one which in my view is sufficiently ameliorating of the risks posed by the wife and will be less likely to lead to further litigation. It is an arrangement that promotes the children’s best interests and is capable of being supported by the parents and their children for the reasons set out above.PROPERTY The parties commenced cohabitation in 1997, married in 2000 and separated in 2019. Their cohabitation period was approximately 22 years.Legal principles Section 79(1) of the Act provides that the Court may make such orders as it considers appropriate altering the interests of the parties in property. Section 79(2) of the Act provides as follows:The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

Ratio Decidendi

Legal Principle Established

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